On My Vote Against the Reappointment of the City Attorney

On February 12^th  at the Executive Committee meeting I voted against the reappointment of Susan Segal to the positions of City Attorney.  I also intend to oppose her reappointment when it will likely come before the full council next month following a public hearing that will be held on Monday, March 3^rd at 1:30 before the Ways and Means committee.

                               

As much as I admire the skills, knowledge and commitment that the City Attorney has, I do not support her reappointment for two main reasons: her handling of the stadium decision and her approach to prosecuting peaceful protesters.  Let me explain, below the fold.

First and foremost I have serious concerns about the City Attorney’s role in the City Council decision to use millions of dollars of city sales tax revenue to help build a new professional football stadium downtown. As far back as December 2011 when discussions of the proposal started, it was clear that the Mayor did not want the matter put on the ballot for a vote despite a charter provision (Chapter 15, Section 13*) that I believed required it. In the course of this decision-making process the City Attorney appeared to use her position to influence the City Council, and the public, to support a funding scheme and process favored by the Mayor, the Vikings and the Governor.  

As someone clearly not in alignment with the Mayor or Governor, but a City Council Member who the City Attorney was presumably there to serve, I got very little support or assistance.  In fact, on January 12^th I asked the City Attorney’s office for an opinion on the whether the stadium funding proposal presented by the Mayor at that time would trigger the charter requirement for a referendum. I asked for an opinion on this again on March 2 and then in early April. The attorney’s office did not provide me with any written comment until April and that was a short email based entirely on new legislation that had been drafted, not the underlying questions that could have been used to inform and influence that legislation.  Her written opinion did not come out until it was too late, on May 21, after the legislation had been passed by the legislature and a council majority had already approved the concept based on her verbal opinion that using the sales taxes would not trigger the charter provision, and that Chapter 15, Section 13 was not applicable. Her written opinion was mostly about how the special law preempted the charter anyway. What I had wanted was an opinion on the proposal prior to any preempting legislation that offered guidance about the use of city sales taxes in relation to the requirements outlined in the charter.

What I think we all required in the course of that decision was timely legal advice that was above any and all political pressure and able to accurately reflect and interpret the law. The office has often been able to provide timely, well-reasoned and unbiased advice, but that was not the case in this instance. In this case the City Attorney’s office provided little advice when it was most needed, and, when the opinion finally came, it was too late and inaccurate. I remain convinced today that the attorney’s judgment was clouded by politics.

For your reference, here is a link to a newspaper article that includes the opinion: 

Since then, others who have far more legal expertise than I have, have also questioned validity of the Attorney’s opinion that the city sales taxes are not a city resource. 

Here is a section of a recent court decision by Hennepin County District Court Judge Philip Bush demonstrating an alternative view that might have been useful for the City Council to be more aware on in January 2012.

"Whether Chapter 15, Section 13 of the City Charter (“Section 13”) required Respondent to hold a referendum on the Stadium Legislation raises two underlying issues. First, does the Stadium Legislation entail the use of more than $10 million in “city resources” for the financing of a professional sports facility, such that Section 13 is applicable? Second, if Section 13 is applicable, was it preempted by the Stadium Legislation? On the first issue, Respondent argues that Section 13 does not apply because the Stadium Legislation does not entail the use of “city resources.”

In making this argument, Respondent notes that the dictionary definition of “resource” sometimes denotes “availability.”

With that definition in mind, Respondent maintains that the sales tax revenue funding the Stadium does not constitute a “city resource” because the revenue is never “available” to the City insofar as the Stadium Legislation requires that portion of the sales tax revenue funding the Stadium to be deposited into the state’s general fund.

That argument is unavailing in several respects. Most notably, the Court cannot discern any need for turning to a dictionary definition of “resource” when the City Charter itself defines “city resources” for purposes of Section 13. Specifically, for purposes of Section 13, the City Charter defines “city resources” to include “sales tax or other taxes.”  Minneapolis, Minn., City Charter, ch. 15, § 13 (emphasis added). 

Since Section 13 defines “city resources” to include “sales tax or other taxes,” the voters who adopted Section 13 in 1997 must have intended the definition of “city resources” to include revenue generated by a sales tax that applies solely within the City.

The voters’ intent is not undone simply because the statutory mechanism for collecting and directing the sales tax revenue funding the Stadium precludes the City from using that revenue for any other purpose.

 

Respondent’s argument is likewise unavailing given a curious dichotomy.  According to Respondent, the sales tax revenue used to fund the Stadium is not a “city resource” because, given the dictates of the Stadium Legislation, those funds are never available to the City. Under the Stadium Legislation, any excess sales tax revenue is remitted to the City, which may use the excess revenue for various purposes See 2012 Minn. Laws, ch. 299, art. 3, §§ 1-2. The excess sales tax revenue is thus “available” to the City and meets the definition of “city resource” posited by Respondent. Accordingly, Respondent’s position necessarily implies a curious dichotomy whereby some portions of the sales tax revenue are a “city resource” and other portions of it are not.

That dichotomy undermines Respondent’s argument in the following way: (1) were it not for the City’s obligation to fund the Stadium, all of the sales tax revenue would constitute a “city resource”; (2) accordingly, by approving of the Stadium Legislation, the City surrendered well in excess of $10 million in “city resources” for purposes of funding the Stadium; and (3) by surrendering “city resources” for that purpose, the City “used” it for that purpose. Any resource, once expended, is no longer available to the person who expended it. The expenditure of it and its subsequent unavailability does not mean that it was never a “resource” for the person who expended it.

On that point, Respondent might argue that the sales tax revenue would not exist in absence of the Stadium Legislation. However, the sales tax revenue would exist in absence of the Stadium Legislation because the sales taxes were already authorized by 1986 Minn. Laws, ch. 396, §§ 4-5. Moreover, that law was amended in 2009 to allow the City to use some of the sales tax revenue for more expansive purposes. See 2009 Minn. Laws, ch. 88, art. 4, § 12. Accordingly, in absence of the Stadium Legislation, the City would still have enjoyed the sales tax revenue as a resource.

The Stadium Legislation, construed as a whole, further undermines Respondent’s argument that the sales tax revenue is not a “city resource” by virtue of the statutory mechanism for collecting the revenue and directing a portion of it toward the Stadium. The Stadium Legislation undermines that argument because it rests on the premise that the City is responsible for a share of the funding. Specifically, the Stadium Legislation provides:

The state share of stadium costs shall be limited to $348,000,000 for construction of a new stadium, as permitted under section 16A.726. The city of Minneapolis share shall be limited to no more than a $150,000,000 contribution for construction, and the annual operating cost and capital contributions contained under section 473J.13.

2012 Minn. Laws, ch. 299, art 1, § 15. If the City has a “share” of the funding, then “city resources” must be in play. Similarly, the Stadium Legislation refers to the sales tax as a tax “imposed” by the City. See, e.g., id., art. 3, § 1. Revenue generated by a tax “imposed” by the City naturally constitutes a “city resource.”

Lastly, constitutional limitations on local taxes undermine Respondent’s argument that the sales tax revenue is not a “city resource.” Under Section 1, Article 9 of the Minnesota Constitution, “a tax cannot be imposed exclusively on any subdivision of the State, to pay an indebtedness or claim which is not peculiarly the debt of such subdivision, or to raise money for any purpose not peculiarly for the benefit of such subdivision.” Sanborn v. Rice Cnty. Comm’rs, 9 Minn. 273, 278 (1864). This limitation further establishes that revenue generated by a city-specific sales tax is a city resource, not a resource of the state, insofar as the benefits of that revenue must inure to the city.

For the reasons set forth above, the Court concludes that, within the meaning of Section 13 of the City Charter, the Stadium Legislation entails the use of more than $10 million in “city resources” for the financing of a professional sports facility. Section 13 is thus applicable. The Court thus turns to the issue of whether Section 13 was preempted by the Stadium Legislation.”

I believe that the handling of the stadium issue alone obligates me to oppose the reappointment of the City Attorney.

There is, however, a second significant concern I have regarding how the Attorney’s office has unnecessarily and unwisely prosecuted peaceful, and often lawful, protesters and, in doing so, stifled the practice free political speech in Minneapolis that is so essential to our democracy.

One example, from 2010, involves animal rights activists protesting the wearing of animal fur outside a clothing store. You can read their perspective here. Despite all the appearances that the activities these two engaged in were legal and protected speech, the City Attorney chose to prosecute. Ultimately this case was thrown out by the Minnesota court of appeals, but only after taking up city resources and time in the court system that might have gone to more worthy efforts.

In 2011, there was another case demonstrating this tendency when eleven peaceful protesters who were arrested for blocking traffic on the 10th Avenue bridge, were aggressively prosecuted. As you can read here this was part of a national protest that day and those arrested, (who later ended up with criminal records because aggressive prosecution pressured them into taking plea bargains), included  Reverend Paul Slack of New Creation Church in Minneapolis, and Minneapolis residents Sunday Alabi, age 61 at the time, from Neighbors Organizing for Change and Donna Cassutt, age 51 at the time, who was with Minnesotans for a Fair Economy.

There are additional examples of a similar approach to protestors arrested more recently as part of the Occupy Homes movement in Minneapolis. You can read more form the protesters perspective here and a City Pages story here. 

One of the more disturbing examples, however, occurred in 2013 when the City Attorney followed through with the prosecution of Clyde Bellecourt when he was in the IDS Crystal Court following and Idle No More protest. You can read more here. I attended this protest myself and visited a while afterwards with Clyde, a longtime community leader, elder and activist. It was clear to me that he was harmlessly sitting in a public area, but was apparently arrested after I left. Ultimately the charges were dismissed but only after everyone had to suffer through, and pay for, a jury trial.

These are a few examples of how the City Attorney appears to use prosecutorial discretion to target peaceful protesters even when conviction is unlikely.  Typically I do not think that it is wise for a Council Member to attempt to influence these kinds of decisions, and I don’t, but this pattern is concerning to me and represents a second major concern I have with the reappointment of Ms. Segal.

As you can imagine, opposing the reappointment of a department head is not an easy decision to make, especially when it appears that I may be the lone Council Member with this view.  It is made more difficult because I have worked closely with Ms. Segal for several years and I recognize that she processes skills, knowledge and admirable intentions. In many ways she has managed the department effectively and helped the city address serious issues related to justice, safety and crime prevention in the city.  Her work on improving our efforts to prevent domestic abuse and sex trafficking as well as supporting youth diversion, restorative justice and youth violence prevention are especially noteworthy. My decision and my vote are not personal.  I value Ms. Segal as a person and as a public servant. I have appreciated her and her office’s outstanding work for the city and help on many of my initiatives in the past.  If she is reappointed I hope to have similarly constructive relationships with her and her office in the future. In the past I have also felt obligated to vote against a mayoral appointee and in that case the person was still appointed and I was able to quickly and easily accept that and work well with them in the future.  While I will continue to oppose Ms. Segal's reappointment in the days ahead, and will continue to use it to advocate in ways that might improve the future work of the Attorney’s office, if she is reappointed I hope to do the same in this instance as well.

* Post Script:

Here is what the Chapter 15, Section 13 of the Charter says:

“Section 13. - Putting Professional Sports Facility Financing Before the Voters.

The City of Minneapolis, Minneapolis Community Development Agency, or any city department, agency, commission, or board, shall use no city resources over $10 million dollars for the financing of professional sports facilities without the approval of a simple majority of the votes cast on the question, in a ballot question put to the public at the next regularly scheduled election. City resources are defined for these purposes as: Tax increment financing, bonds, loans, land purchase or procurement, land or site preparation, including necessary infrastructure such as roads, parking development, sewer and water, or other infrastructure development, general fund expenditures, sales tax or other taxes, deferred payments, interest free or below market interest rate loans, the donation or below market value sale of any city resources or holdings or any other free or below cost city services. The ballot question shall not be put before the public in a special election, in order to prevent the costs associated with special elections.”